A majority of the 100 executed inmates examined in a new study by three legal researchers had “a severe mental illness such as schizophrenia, post-traumatic stress disorder or psychosis.” Yet, because of an oddity in the Supreme Court’s death penalty cases, it is typically constitutional under existing precedents to execute people with these illnesses.
In a pair of cases decided in 2002 and 2005, the Court held that it is unconstitutional to execute intellectually disabled inmates and individuals who committed a capital offense when they were under the age of 18. As the Court explained in the first of these two cases, these cases are rooted in the fact that certain offenders “have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others” — and thus it would be cruel and unusual punishment to subject them to the most permanent of punishments.
This rationale — that people with diminished mental capacity cannot be executed — applies with equal force to people with severe mental disorders. Indeed, the study by researchers Robert J. Smith, Sophie Cull and Zoë Robinson finds that “the overwhelming majority of executed offenders had intellectual and psychological deficits that rivaled—and sometimes outpaced—those associated with intellectual disability and juvenile status.” And yet the Court has not yet extended the same protections to people with severe mental illnesses that it has to juvenile offenders and people with intellectual disabilities.
In a grim reminder that the fact that a practice is unconstitutional does not mean it will cease, the same study also found that “[o]ne-third of the last hundred executed
offenders were burdened by intellectual disability, borderline intellectual functioning, or traumatic brain injury—a similarly debilitating intellectual impairment.” Yet there is reason for death row inmates and their lawyers to hope that this number may change in the future. A loophole in the Court’s decision prohibiting executions of the intellectually disabled has allowed many states to evade this decision in the past, but the Court began to close this loophole earlier this year.